Pre-Injury Releases and Waivers

Signing Waiver

     “Please be careful” is a continuous warning parents relay to their children, but children are often faced with many risks that are outside of their—and their parents’ or guardians’—control.  This is especially true when minor children visit businesses that specifically cater as places of amusement, where things such as other rambunctious patrons, faulty equipment, poorly-trained employees, or dangerous premises can potentially cause injury, no matter how careful an individual child or their guardian may be.  Many parents and guardians question the validity of waivers they are often required to sign on behalf of their children. We are often asked, “Is this even legal?”; “Can they actually do that?” or “What does this mean?

     Adults, on the other hand, may feel more confident about their own safety, and might sign the paperwork to engage in an activity without even reading it.  By doing this, however, an adult may be giving up important legal rights—while at the same time placing themselves at the mercy of a for-profit business and its employees.

     When adults and children visit businesses offering activities that present a risk of injury, patrons are almost always required to sign a pre-injury release and waiver.  Businesses such as trampoline parks, climbing gyms, rafting companies, paintball parks, and other entertainment venues use these waivers both as an attempt to limit their liability for injuries and to discourage claims.  The most common forms describe the risks of engaging in the activity and require the participant to assume any and all responsibility for injuries or death, as well as releasing the business from liability and waiving the right to make any claims.

     Pre-injury releases concerning adults may be enforceable in Alabama, but their validity will be determined by the specific language of the release. It is important to note that these releases are not enforceable against minors (persons under 19 years of age) in Alabama—even if they are executed and understood by a parent or guardian. In J.T. Monster Mtn., L.L.C., 754 F. Supp 2d 1323 (M.D. Ala. 2010), the court held that a parent may not bind a child to a pre-injury liability waiver in favor of a for-profit business by signing a liability waiver on a child’s behalf.  This ruling is based on the long-standing Alabama rule that allows minors to void any contract, because the minors themselves do not have the capacity to enter into contracts.

     When adults are involved, Alabama will enforce an agreement to release claims or damages before the claims or injuries have occurred if the parties’ intent is clearly expressed in the agreement. Minnifield v. Ashcraft, 903 So. 2d 818, 827 (Ala. Civ. App. 2004).   An agreement that releases a party from “all claims for injury and/or damage” for participation in an event is not ambiguous and is enforceable. Dudley v. Bass Anglers Sportsman Soc., 777 So. 2d 135 (Ala. Civ. App. 2000).  If there is any ambiguity as to what causes of action are intended to be discharged by the pre-injury release, however, it may not be enforceable.

     A pre-injury release signed by an adult that is clear in what it covers is enforceable, even if the person signing did not read the agreement.  However, pre-injury releases and waivers will not prevent liability for wanton or willful conduct.  In Alabama, willful or wanton conduct involves premeditation or consciousness that an injury is likely to result from an act or omission.

     In other words, to provide a short explanation to a long question by way of an example:  If an adult guardian and a minor child under the age of 19 were to attend an activity such as a for-profit amusement park, the park could require that the adult sign a waiver or pre-injury release for themselves and the child as a condition of admission.  If the adult and child were to suffer injuries as a result of the park’s negligence—for instance if an employee failed to properly maintain a ride and it malfunctioned—a claim by the adult could be barred by the waiver, IF that waiver was clear and non-ambiguous as to what it covered.  The child’s claim, however, would not be barred by the waiver, because the minor child was too young to have signed any binding contract themselves.

     Here at Siniard, Timberlake & League, our attorneys have experience reviewing the language of liability waivers and pre-injury releases to make sure that our clients’ legal rights are upheld.  If you or someone you love has been injured in a situation where the defendant is trying to avoid liability through a waiver or pre-injury release, contact us.  We can help.